The government has issued a consultation on proposed amendments to the Home Office statutory code of practice for employers on avoiding unlawful discrimination, while at the same time preventing illegal working.

Focusing in particular on the duty to avoid race discrimination, the code makes clear that employers across the UK (both public and private) must not contravene the Equality Act 2010 and/or relevant legislation in Northern Ireland when carrying out checks to prevent illegal working.

In order to avoid discriminating against a worker, the code states that employers must be consistent in the ways they carry out right to work checks on all job applicants, irrespective of their ethnic origin. They must ensure job selections are made on the basis of suitability and they must ensure that job applicants are not discouraged or excluded from applying or being hired because of known or perceived protected characteristics under the Equality Act.

Conversely, employers should not make assumptions about a person’s right to work in the UK on the basis of their colour, nationality, ethnic or national origins, accent, surname or the length of time they have lived in the UK. In particular, they should not only check the status of people who appear to the employer to be migrants.

All employers in England, Scotland, Wales and Northern Ireland must adhere to this code. It also applies to certain organisations, such as employment businesses and employment and recruitment agencies (including online agencies). An employment agency or business practising unlawful discrimination may be liable, even if it is acting on the instructions of an employer.

As a matter of good employment practice, employers should therefore have clear written procedures for the recruitment and selection of workers based on equal and fair treatment for all applicants and copies should be made available to all relevant staff.

This version of the code of practice applies to all employment commencing on or after 6 April 2022. It also applies where a repeat check on an existing worker is required to be carried out on or after that date in order to retain a “statutory excuse”.

The consultation closes at 8pm on 25 February 2022.

For more information, click here.